Posted March 1st, 2021.
By Mike LaSusa
On the fifth anniversary of the U.S. Supreme Court’s ruling in Tyson Foods Inc. v. Bouaphakeo, wage and hour attorneys told Law360 that the decision allowing workers to use averages and statistics to show similarities among disparate class members is still a resonant force in litigation.
The March 2016 opinion in Tyson v. Bouaphakeo affirmed a $5.8 million judgment in favor of pork-processing workers at the company’s facility in Storm Lake, Iowa. The workers had prevailed in a hybrid class and collective action they brought in 2007 over uncompensated time spent donning and doffing required protective gear.
The majority of the justices in the 6-2 decision said the district court was right to certify the class based in part on a statistical analysis the workers introduced to fill an evidentiary gap created by Tyson’s failure to keep adequate records.
Since the ruling was handed down, the precedent has mattered in “every off-the-clock case, not just donning and doffing,” said Justin Swartz, a partner at worker-side firm Outten & Golden LLP.
“It stands for the broad principle that time worked should be compensable and that evidentiary barriers should not get in the way of workers being able to recover,” Swartz said.
In fact, Swartz said, the ruling matters “more now than ever.”
“Many recently appointed conservative judges are making it harder and harder for workers to recover,” he said. “A company that’s not paying for time worked should not be able to escape responsibility based on technicalities or overly nuanced readings of the law.”
A Limited Win?
For the plaintiffs bar, the Supreme Court’s ruling in Tyson was like “dodging a bullet,” said Andrew Melzer, the co-chair of the wage and hour practice at worker-side firm Sanford Heisler Sharp LLP.
The justices’ 2011 ruling in Wal-Mart Stores Inc. v. Dukes raised the bar for bringing classwide claims in employment suits, faulting a lower court for attempting to implement “trial by formula” rather than allowing the retailer the chance to raise individual affirmative defenses in the massive sex discrimination case.
Melzer said the Tyson case was closely watched because employers had seized on the Dukes precedent, using it as a cudgel against the introduction of statistical evidence in court.
“People were very concerned when the Supreme Court took the case,” he said. “There was a significant concern that Tyson would be the next step in the chain to erode class actions.”
But the Tyson ruling wasn’t exactly a sweeping victory for workers, said Clint Engleson, an attorney at management-side firm Procopio Cory Hargreaves & Savitch LLP.
“I don’t think in any sense it opened the floodgates to using statistical evidence in wage and hour class actions generally,” he said. Workers in wage and hour class actions still have to show that common issues predominate over individual ones, he added.
“Even if you are allowed to proceed with surveys, those surveys have to show uniformity of experiences,” he said. “Each class member would have to be able to rely on the sample to prove their individual damages. So that’s still a pretty high bar.”
A Statistical Staying Power
The Tyson decision didn’t give workers free rein to use statistics in wage and hour class actions, but it still affected how employers handle those suits, said John M. Masslon II, senior litigation counsel at the Washington Legal Foundation, a nonprofit that weighed in on Tyson’s side during the Supreme Court case.
“Defendants now understand they must strenuously contest the admissibility of statistical studies on which plaintiffs’ class certification arguments rely,” Masslon said.
The Tyson ruling could take on more relevance in the context of the COVID-19 pandemic, with workers filing wage and hour cases related to remote work situations and donning and doffing protective gear, Engleson said.
“In the district courts and in the circuit courts the application [of the Tyson standard] is fairly consistent,” he said.
The precedent set by Tyson is likely to stick around, especially since the 2016 decision was based in part on the high court’s 1946 Mt. Clemens Pottery ruling, which also dealt with the use of estimates in wage and hour class actions, said Andrew Lee, a partner at worker-side firm Goldstein Borgen Dardarian & Ho.
“Now the Supreme Court has said the same thing twice,” Lee said. “It would be unusual for the Supreme Court to not follow its past decisions.”
–Additional reporting by Vin Gurrieri and Dorothy Atkins. Editing by Haylee Pearl.